LCQ5: Combating trafficking in persons
Last year, Hong Kong was placed, for the second consecutive year, on the Tier 2 Watch List in the Trafficking in Persons Report published annually by the Department of State of the United States, indicating “a failure to provide evidence of increasing efforts to combat severe forms of trafficking in persons (“TIP”) from the previous year” on the part of Hong Kong. Moreover, the High Court pointed out in a judgment handed down in 2016 on a judicial review case that the Government had failed to fulfill its obligation to protect the right, under Article 4 in Part II (Hong Kong Bill of Rights) of the Hong Kong Bill of Rights Ordinance, of the applicant in that case of not being subjected to forced labour or TIP. In particular, the Court stated that the critical flaw in the Government’s fulfilment of its obligations under Article 4 of the Hong Kong Bill of Rights was the lack of a criminal offence and penalty that addressed the prohibited concept of forced or compulsory labour. Despite the Government’s repeated claim that TIP has been effectively dealt with by the various pieces of legislation, some human rights organisations have expressed concern that the current legislative framework fails to combat all forms of TIP as defined under Article 3(a) of the Palermo Protocol, nor can it effectively pursue syndicates or persons benefiting from the proceeds obtained from such activities. In this connection, will the Government inform this Council whether it will conduct a comprehensive review of the policies and measures in place in relation to TIP and forced labour, and introduce dedicated and comprehensive criminal legislation and penalties to prohibit such acts; if so, of the details (including timetable); if not, the reasons for that?
Trafficking in persons (TIP) is a heinous crime that is not tolerated in Hong Kong. Our well-established legal framework, stringent enforcement actions, independent judicial system, respect for the rule of law in society as well as our clean government have placed us on a solid footing to combat TIP. The Government has always attached great importance to anti-TIP work, responding to this evolving international issue through targeted and multi-pronged measures (which are now under continuous review and updating) in areas including victim identification, law enforcement, prosecution, victim protection, enhancement in staff training and forming partnership with local and overseas stakeholders.
The Government does not agree that the existing legislation of Hong Kong cannot effectively combat and prevent TIP. At present, our legislation has provided an adequate and solid legal framework to effectively combat TIP crimes. Although Hong Kong does not have a single piece of legislation prohibiting TIP and the Palermo Protocol has not been applied here, the legislation of Hong Kong has already covered the conduct of “TIP” as defined in the Palermo Protocol, mainly including the following six aspects:
(1) Crimes Ordinance (Cap. 200) prohibits TIP to or from Hong Kong for the purpose of prostitution; harbouring another person or exercising control or direction over another person for the purpose of that person’s prostitution or that that person shall do unlawful sexual acts with others; and any other person from procuring another person to become a prostitute or cause prostitution of that person in Hong Kong or elsewhere. It also prohibits other crimes including rape, procuring another person by threats to do unlawful sexual acts with others and criminal intimidation;
(2) Human Organ Transplant Ordinance (Cap. 465) prohibits commercial dealings in human organs;
(3) Prevention of Child Pornography Ordinance (Cap. 579) prohibits printing, making, producing, reproducing, copying, importing or exporting, publishing and possessing child pornography;
(4) Immigration Ordinance (Cap. 115) prohibits arrangement for an unauthorised entrant to Hong Kong and employing illegal workers;
(5) Employment Ordinance (Cap. 57) imposes criminal liability on employers involved in non-payment, under-payment of wages or delay in payment of wages, failure to grant rest days and statutory holidays to employees; and
(6) other relevant ordinances which prohibit such crimes as assault, forcible taking or detention of persons with intent to sell him or her, child abduction, deception and blackmail, etc.
The most serious penalty for the above offences is life imprisonment.
Although TIP is neither widespread nor prevalent in Hong Kong, the Government has been keeping a close watch on the trend of TIP crimes to make timely responses to the rapidly changing crime situation as well as modus operandi of criminals, and keeping abreast of the enforcement of existing legislation with regard to prevailing circumstances so as to propose legislative amendments if necessary.
To enhance prosecutors’ awareness of TIP and forced labour, the Department of Justice incorporated a new paragraph titled “Human Exploitation Cases” in the Prosecution Code published in 2013, with a view to providing guidance to prosecutors as to what may amount to TIP and exploitation, as well as the proper approach to handle the cases concerned.
In addition, the Government attaches great importance to protecting the rights and benefits of foreign domestic helpers (FDHs). At present, there are about 370 000 FDHs in Hong Kong assisting local families in household chores and taking care of the elderly and children in our families, thereby unleashing the local labour force and making significant contribution to Hong Kong’s economic development. In order to prevent FDHs from falling victim to TIP, we will further enhance the protection for FDHs and maintain Hong Kong as an attractive place of work for FDHs. The Employment (Amendment) Ordinance 2018 came into effect on February 9 this year, significantly increasing the maximum penalties for the offences of overcharging of commission from job-seekers and unlicensed operation by employment agencies (EAs) from a fine of HK$50,000 by seven times to HK$350,000 and imprisonment for three years. The statutory time limit for prosecuting these two offences has also been extended from six months to 12 months, and the scope of the overcharging offence has been expanded to cover the management and employees of EAs in addition to the licensee. These measures have significantly increased the deterrent effect and provided better protection for all job-seekers, including of course, FDHs.
Combating TIP requires the concerted efforts of various bureaux and departments of different disciplines. To ensure the effective implementation of their work and heighten public awareness of TIP, the Government has decided to establish a high-level Steering Committee, chaired by the Chief Secretary for Administration, with the Secretary for Security and Secretary for Labour and Welfare as the vice-chairmen and relevant department heads as members. The Steering Committee will offer strategic steer in respect of tackling TIP and enhancing the protection of FDHs; formulate and monitor the full implementation of the “Action Plan to Tackle Trafficking in Persons and to Enhance Protection of Foreign Domestic Helpers in Hong Kong” (the Action Plan in short); and ensure the provision of adequate resources to the relevant bureaux and departments for the effective implementation of the Action Plan.
The major new initiatives set out in the Action Plan include:
(i) expanding the TIP victim screening mechanism by introducing a new victim identification mechanism in the Labour Department for the early identification of FDHs being exploited or abused and provision of appropriate assistance;
(ii) expanding the victim screening mechanism currently in place in 12 police districts to all 24 police districts in the territory;
(iii) setting up dedicated teams in relevant departments to ensure high efficiency in investigation and law enforcement, and to facilitate further enhancement of inter-departmental co-operation;
(iv) setting up a dedicated hotline with interpretation services to enhance assistance to FDHs; and
(v) stepping up co-operation with major FDH-sending countries, such as enhancing high-level exchanges between governments to understand each other’s latest policy developments and discuss issues of mutual concern; and conducting local publicity activities there to promote FDHs’ lawful interests in Hong Kong and various protective measures available.
The Government will announce the establishment of the Steering Committee and details on implementing the Action Plan later today.
Finally, President and members, I must reiterate that TIP and exploitation of FDHs are absolutely not tolerated in Hong Kong. The Government will implement various measures under the Action Plan to continue its dedicated efforts in combating TIP and enhancing the protection of FDHs, including close monitoring of the latest modus operandi of criminals and introducing further initiatives as and when necessary. We will also continue our close co-operation with community organisations and the international community.
As regards the judicial review case mentioned in the Hon Dennis Kwok’s question (i.e. ZN v. Secretary for Justice and others, HCAL 15/2015), the Government does not agree with the conclusion and judgment of the Court of First Instance and has lodged an appeal. As the Court of Appeal will hear the case in May this year, it is inappropriate for the Government to make further comment on the case at this stage.
Thank you, President.
Ends/Wednesday, March 21, 2018
Issued at HKT 13:51
Issued at HKT 13:51